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Judicial Watch • JW v FBI FRA recordkeeping complaint 02316

JW v FBI FRA recordkeeping complaint 02316

JW v FBI FRA recordkeeping complaint 02316

Page 1: JW v FBI FRA recordkeeping complaint 02316

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Number of Pages:5

Date Created:October 9, 2018

Date Uploaded to the Library:October 09, 2018

Tags:recordkeeping, FRA, 02316, Seidel, effective, electronic, program, complaint, defendant, michael, filed, federal, plaintiff, document, FBI, FOIA, Washington


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Case 1:18-cv-02316 Document Filed 10/09/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
425 Third Street, S.W., Suite 800
Washington, 20024,
Plaintiff,
FEDERAL BUREAU INVESTIGATION,
935 Pennsylvania Avenue, N.W.
Washington, 20535,
Defendant.
Civil Action No.
Complaint
This Administrative Procedure Act lawsuit challenges Defendant Federal Bureau
Investigation failure conform the Federal Records Act concerning the preservation
electronic messages (excluding email). grounds for its lawsuit, Plaintiff alleges follows:
Jurisdiction and Venue
The Court has jurisdiction over this action pursuant U.S.C. 1331.
Venue proper this district pursuant U.S.C. 1391(e).
Parties
Plaintiff Judicial Watch, Inc. not-for-profit, educational organization
incorporated under the laws the District Columbia and headquartered 425 Third Street
S.W., Suite 800, Washington, 20024. Plaintiff mission educate the public about the
operations and activities the government and government officials. Plaintiff undertakes
investigations the federal government and federal officials making extensive use the
Freedom Information Act. agency fails respond request within the time required
Case 1:18-cv-02316 Document Filed 10/09/18 Page FOIA, the agency withholds responsive records, Plaintiff often files suit. 2018 alone,
Plaintiff has sent over FOIA requests the FBI, seeking access communications agency
officials, officers, employees. those requests, least them specifically seek
electronic messages. addition, Plaintiff has pending lawsuits against the U.S. Department
Justice for communications FBI officials, officers, employees. those, least
specifically seek electronic messages.
Defendant FBI agency the U.S. Government and has its headquarters
935 Pennsylvania Avenue, N.W., Washington, 20535.
Facts
The FRA governs the creation, management, and disposal records federal
agencies. U.S.C. 2101-20, 2901-11, 3101-07, and 3301-14.
The FRA requires the preservation all records made received agency
that documents the agency activities. U.S.C. 3301(a)(1)(A). Such records are known
federal records. Id.
The FRA also requires agencies establish and maintain recordkeeping program
that provides effective controls over federal records. Citizens for Responsibility Ethics
Washington Pruitt, 2018 U.S. Dist. LEXIS 123183, *18 (D.D.C. July 24, 2018) (quoting
U.S.C. 3102).
The National Archives and Records Administration has central oversight role
providing guidance and assistance agencies. U.S.C. 2904. promulgates standards,
procedures, and guidelines concerning the management federal records. See id.; see also
C.F.R. 1222.22, seq.
According NARA, electronic messages created received the course
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Case 1:18-cv-02316 Document Filed 10/09/18 Page
agency business are federal records. Electronic messages include email,1 text messages,
chat/instant messages, and voicemail messages. David Ferriero, Guidance Managing
Electronic Messages, Bulletin 2015-02 (July 29, 2015, available https://www.archives.gov/
records-mgmt/bulletins/2015/2015-02.html).
10.
Because they are federal records, electronic messages must captured and
managed compliance with the FRA. the use electronic messaging systems changes,
agencies must review and update their recordkeeping programs account for such changes. Id.
11.
The FBI however does not have recordkeeping program place that provides
effective controls over the maintenance electronic messages, including text messages.
12.
According Michael Seidel, the Assistant Section Chief the
Record/Information Dissemination Section the FBI Information Management Division, text
messages [FBI]-issued devices are not automatically integrated into FBI records system.
Declaration Michael Seidel, Docket Entry No. 19-2, Danik U.S. Department Justice,
Case No. 17-cv-01792 (TSC) (D. District Columbia)
13.
The FBI relies upon its personnel incorporate their text messages into
recordkeeping system. FBI personnel not actively incorporate their text messages into
recordkeeping system, the text messages are not preserved. Id. 9-11.
14.
This policy unique text messages and other electronic messages. While some
FBI communications (including emails) are automatically incorporated into FBI filing systems,
text messages are not. Id. 12.
15.
Because the FBI does not have recordkeeping program place that provides
effective controls over the maintenance electronic messages, Plaintiff unable obtain
Email not issue this lawsuit.
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Case 1:18-cv-02316 Document Filed 10/09/18 Page
electronic messages through FOIA requests the FBI. result, Plaintiff being deprived
information that would aid its investigations and being harmed its educational mission.
Count
(Administrative Procedure Act Violation)
16.
Plaintiff realleges paragraphs through fully stated herein.
17.
Defendant failure establish and maintain recordkeeping program that
provides effective controls over the maintenance electronic messages violates the FRA.
18.
Defendant failure establish and maintain recordkeeping program that
provides effective controls over the maintenance electronic messages constitutes final
agency action for which there adequate remedy law.
19.
Defendant failure establish and maintain recordkeeping program that
provides effective controls over the maintenance electronic messages arbitrary, capricious, abuse discretion, otherwise not accordance with the FRA.
20.
Defendant failure establish and maintain recordkeeping program that
provides effective controls over the maintenance electronic messages causing Plaintiff
irreparable harm because prevents Plaintiff from obtaining electronic messages under FOIA.
21.
Plaintiff will continue irreparably harmed unless and until Defendant
establishes and maintains recordkeeping program that provides effective controls over the
maintenance electronic messages.
WHEREFORE, Plaintiff respectfully requests that the Court: (1) declare Defendant
failure establish and maintain recordkeeping program that provides effective controls over
the maintenance electronic messages arbitrary, capricious, abuse discretion,
otherwise not accordance with law; (2) order Defendant establish and maintain
recordkeeping program that provides effective controls over the maintenance electronic
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Case 1:18-cv-02316 Document Filed 10/09/18 Page
messages that Plaintiff may obtain electronic messages subject Plaintiff FOIA requests;
(3) grant Plaintiff award attorneys fees and other litigation costs reasonably incurred
this action; and (4) grant Plaintiff such other relief the Court deems just and proper.
Dated: October 2018
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff
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